JUDGMENT : K.C. BHANU, J.:— The present appeal is filed challenging the conviction and sentence recorded in S.C. No. 1 of 2003 on the file of the Additional Sessions Judge, Chittoor, whereby the sole accused was found guilty for the offence under Section 302 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for two months. 2. The brief facts that are necessary for the disposal of the appeal may be stated as follows: P.W. 1 is the sister and P.W. 4 is the son of the deceased. The deceased was married to the accused about thirteen years prior to the date of the incident and they were blessed with two sons. The deceased often used to complain to P.W. 1 that the accused used to come home in a drunken state and used to beat her suspecting her fidelity. While so, on the date of incident, at about 11.30 p.m., on hearing the cries from the house of the accused P.Ws. 2 and 3 rushed there and found the deceased in flames and also saw the accused pouring water on her to put off the flames. In the meanwhile, all the neighbours gathered there and sent a word to P.W. 1. P.W. 1, thereafter, rushed to the house of the accused and shifted the deceased to the hospital. On enquiry, the deceased alleged to have informed her that the accused poured kerosene and set her on fire. P.W. 8, the Civil Assistant Surgeon of the Area Hospital, Kuppam gave first aid to the deceased and sent intimation to the police and Magistrate to record the dying declaration. 3. On the intervening night of 24/25-9-2002 at about 12.30 a.m., on receiving the said information, P.W. 12, the then Head Constable, Kuppam Police Station rushed to the hospital and recorded her statement which is marked as Ex. P-11. He, then on the basis of the said statement registered the same as case in crime No. 125 of 2002 under Section 307 of I.P.C. and issued F.I.R., which is marked as Ex. P-12. On 25-9-2002, he visited the scene of offence and conducted Panchanama in the presence of P.W. 6 and others under Ex. P. 5. He also prepared rough sketch of the scene of offence under Ex. P-12. On 25-9-2002, he visited the scene of offence and conducted Panchanama in the presence of P.W. 6 and others under Ex. P. 5. He also prepared rough sketch of the scene of offence under Ex. P-13 and photographed the same through P.W. 6 Exs.P. 1 to 4 are the photographs. During the course of investigation, he examined and recorded the statements of P.Ws. 1 to 6. On 30-09-2002, he arrested the accused and sent him for remand. Further investigation was taken over by P.W. 13, the Sub-Inspector of Police. On 07-10-2002, at about 9.30 p.m. on receiving the death intimation, Ex. P-8, he altered the Section of law from 307 I.P.C. to Section 302 of I.P.C. and issued altered F.I.R. which is marked as Ex. P-14. On 08-10-2002, he held inquest over the dead body of the deceased in the presence of P.W. 11. Ex. P-11 is the inquest report. On 8-10-2002, P.W. 10, Deputy Civil Surgeon, Government Area Hospital, Kuppam held autopsy over the dead body of the deceased and opined that the cause of death was due to cardio respiratory arrest due to extensive burns. Ex. P-9 is the Post Mortem report. On completion of investigation, P.W-13 filed the charge sheet. The charge leveled against the accused is that on 24-9-2002 at about 11.30 p.m., at Tappal Raj Street, the accused caused the death of his wife, Ambika by pouring kerosene and setting her on fire and thereby committed an offence punishable under Section 302 of I.P.C. 4. When the charge was read over and explained to the accused in Telugu, the accused pleaded not guilty and claimed to be tried. 5. In order to substantiate the case of the prosecution, the prosecution examined P.Ws. 1 to 13 and got marked Exs.P-1 to P-14, besides the case properties, M.Os. 1 to 8. 6. Accepting the oral dying declaration said to have been made by the deceased to P.W. 1 and the dying declaration recorded by the Police as well as the Magistrate, the trial Court found the accused guilty of the offence under Section 302 I.P.C. and accordingly convicted the accused. Challenging the same, the present appeal is filed. 7. 6. Accepting the oral dying declaration said to have been made by the deceased to P.W. 1 and the dying declaration recorded by the Police as well as the Magistrate, the trial Court found the accused guilty of the offence under Section 302 I.P.C. and accordingly convicted the accused. Challenging the same, the present appeal is filed. 7. Learned counsel for the appellant-accused contended that the deceased was not in a position to speak and therefore the question of giving declaration by the deceased does not arise; that there is evidence on record to show that immediately after the incident, the accused tried to put off the flames and has taken the deceased to the hospital and therefore, if really he has any intention to kill his wife, he would not have tried to extinguish the flames and would not have taken the deceased to the hospital and therefore prays to allow the appeal. 8. On the other hand, learned Public Prosecutor contended that the dying, declaration made before the Magistrate is found to be true and correct and it can be acted upon to base the conviction and the oral testimony she gave to P.W. 1 goes to show that it is the accused who poured kerosene on the body of the deceased and set her on fire. The trial court after an elaborate consideration of the evidence on record, rightly found the accused guilty and there are no grounds to interfere with the same. 9. The deceased is no other than the wife of the accused. P.w. 4 is the son of the accused and the deceased. P.W. 1 is the younger, sister. The marriage of the accused with the deceased took place at about 13 years prior to the death of the deceased. The Inspector of Police conducted inquest on the dead body of the deceased under Ex. P-10 in the presence of mediators. The inquest mediators opined that the deceased died as a result of burn injuries. P.W-10 is the doctor who conducted autopsy on the dead body of the deceased and found burns injuries of the face, neck, both the upper limbs, front aspect of the chest, back aspect of the chest and on the front aspect of the abdomen. The doctor opined that the deceased appeared to have died of cardio respiratory arrest and issued Ex. P-9, post mortem certificate. The doctor opined that the deceased appeared to have died of cardio respiratory arrest and issued Ex. P-9, post mortem certificate. The cause of the death as spoken to by the doctor is not denied or disputed by the accused. 10. Now what is to be seen is whether the accused is the real assailant of the deceased or not? 11. P.W. 1 is the sister of the deceased. On coming to know about the incident, she rushed to the house of the accused and found that the flames on the body of the deceased were put off with water. At that time, she had seen the deceased in the front room of the house. P.Ws. 2 and 3 were present even according to her. When she questioned the deceased as to how the deceased sustained the injuries, she informed her that her husband poured kerosene on her body and set fire to her suspecting her fidelity. Accordingly to her, the accused was not present when she went to the house of the deceased. Then she procured an auto and took the deceased to the Government Hospital at Kuppam and admitted her in the hospital. She admitted that she does not know as to who poured water on the body of the deceased. When she was examined in the police station, she stated as in D-1 to the effect that the accused himself poured water on the body and put off the flames. It is suggested to her that she advised the deceased to give a statement to the police to the effect that the accused had poured kerosene on the body of the deceased and set her on fire. Therefore, the evidence of P.W. 1 has to be tested with the evidence on record be cause there is a complaint that she was instrumental for the accused and the deceased in coming over to Kuppam. 12. P.W. 2 is an immediate neighbourer because his house is situated opposite to the house of the accused and the deceased. According to him at about 11.30 and 12.00 mid night, he heard the cries from the house of the accused, where the accused was crying. He heard the cries of the deceased also. On hearing the cries of the deceased, he came out and saw the deceased in flames and the accused pouring water on her. According to him at about 11.30 and 12.00 mid night, he heard the cries from the house of the accused, where the accused was crying. He heard the cries of the deceased also. On hearing the cries of the deceased, he came out and saw the deceased in flames and the accused pouring water on her. By that time, P.W. 1 also came there. When P.W. 1 questioned the deceased, she could not talk freely. Meanwhile, an auto came there and in that auto, the deceased was taken to the hospital. This witness has no grouse or enemity against the deceased. According to us, if the evidence of this witness is accepted; then the question of deceased giving oral dying declaration to P.W. 1 cannot be accepted and believed in view of the fact that it is very clear that the deceased was not talking freely. If really, a statement was made by the deceased to P.W. 1 as to the cause of death, certainly it would have been heard by P.W. 2 also. 13. P.W. 3 also stated that the accused poured water on the deceased and tried to put off the flames on the body of the deceased. He also did not state that the deceased gave a statement to her sister about the cause of her death or about the cause of the burn injuries. 14. P.W. 4 is the son of the deceased who stated that on hearing the cries, he woke up and saw her mother in flames in front of the room and his father was pouring water on her. Thereafter, P.W. 1 came there and took the deceased in an auto to the hospital. 15. P.W. 5 is the owner of the house. On hearing the cries, he went to the house of the deceased and he also did not state that the deceased gave any statement to P.W. 1. Therefore, from the evidence of P.Ws. 2 to 5, it is clear that the deceased did not give any statement to P.W. 1 as to the cause of her death or any of the circumstances resulting in her death. So, we are unable to place any reliance on the evidence of P.W. 1. 16. The other evidence which remains on record is Ex. 2 to 5, it is clear that the deceased did not give any statement to P.W. 1 as to the cause of her death or any of the circumstances resulting in her death. So, we are unable to place any reliance on the evidence of P.W. 1. 16. The other evidence which remains on record is Ex. P. 7, which is recorded by P.W. 7, who is the Judicial Magistrate of First Class at the relevant point of time of incident. On receipt of requisition from the Government Hospital, Kuppam on the intervening night 24/25-9-2002 at 1.10 a.m., he proceeded to the hospital and the duty doctor was also present at that time and after putting some preliminary questions to the deceased about her mental condition and after satisfying that she was in a fit state of mind to give a statement, he recorded the statement as in Ex. P-7. In Ex. P-7, the deceased stated that the accused poured kerosene on her body and set her on fire and as a result, she sustained bum injuries. The doctor made an endorsement in Ex. P-7 that the patient was in a fit state of mind. P.W. 8 is the doctor who certified about the condition of the deceased under Ex. P-7. 17. There cannot be any dispute that under Section 32(1) of the Evidence Act, a written or verbal statement made by a person as to the cause of his/or her death or as to any of the circumstances of the transaction which resulted in his/or death, the case in which the cause of that person's death comes into question, such statements are relevant. Once a dying declaration is found to be true and correct, the law is well settled that it may be acted upon and conviction can be maintained solely basing upon it. If the dying declaration is found to be an out come or tutoring or prompting by some interested person, then prudence requires that it should be corroborated on material particulars. In the case on hand, in the statement recorded by the police, the deceased has stated that the accused tried to extinguish the flames whereas she did not mention anything when the concerned Magistrate recorded her statement. But, in both the statement, the deceased has consistently stated that it is the accused who poured kerosene on her body and set her on fire. But, in both the statement, the deceased has consistently stated that it is the accused who poured kerosene on her body and set her on fire. Admittedly, P.W. 1 was present in the hospital right from place of incident. When she has accompanied the deceased to the hospital in an auto, the possibility of P.W. 1 tutoring the deceased cannot be ruled out because P.W. 1 went to the extent of deposing that the deceased informed her that the accused poured kerosene on her body and set her on fire. The oral dying declaration said to have been given by the deceased to P.W. 1 was found to be false. In view of the evidence of P. Ws. 2 to 5, there is every reason or possibility to believe that deceased was tutored by P.W. 1 to give a statement against her husband. Therefore, we are of the opinion that Ex. P-7 is not true version given by the deceased. The possibility of forcing the deceased to give a statement by P.W. 1 cannot be ruled out because at the earliest point of time, when neighbours, P. Ws. 2 to 5 gathered at the scene of occurrence, she did not mention the name of any person or her husband as the assailant. Therefore, in these circumstances, the dying declaration recorded by the Head constable and Magistrate are required to be corroborated on material particulars by other evidence. There is no other corroborating evidence to say that it is the accused who poured kerosene on the body of the deceased and set her on fire. The immediate conduct of the accused is also very much relevant in this case. If the accused had any intention or motive to kill the deceased by pouring kerosene and setting her on fire, certainly, he would not have extinguished the flames. There is ample evidence on record to show that the accused tried to put off the flames. Therefore, these circumstances also would belie the statement given by the deceased to the Magistrate and the Head Constable. These aspects have not been considered by the trial Court. Since Exs.P-7 and P-11 are not true and correct statements of the deceased in the sense that they were an out come of tutoring by P.W. 1, solely basing on those two statements, the accused cannot be convicted. 18. In the result, the appeal is allowed. These aspects have not been considered by the trial Court. Since Exs.P-7 and P-11 are not true and correct statements of the deceased in the sense that they were an out come of tutoring by P.W. 1, solely basing on those two statements, the accused cannot be convicted. 18. In the result, the appeal is allowed. The conviction and sentence recorded by the trial Court against appellant/accused under section 235(2) Cr.P.C. for the offence under section 302 of I.P.C. is set aside. The appellant/accused is acquitted of the charge levelled against him. He shall be released forthwith, if he is not required in any other case.